Notwithstanding the following evidence, any form of consent may be used if the act or convention does not require the written form ad substantiam to be effectively executed, any form of consent, including the simplest form of electronic signature. As everyone is working more than ever, but only at home, the parties are turning to technology to close transactions and are considering increasing their use of electronic signature platforms (eSignature) like DocuSign. The eIDAS regulation, the definitions of which are contained in the Digital Management Act, distinguishes three types of electronic signature: electronic signature, advanced electronic signature and qualified electronic signature. Electronic signature: this is the simplest type of electronic signature that does not require third parties to offer advanced or qualified electronic signature solutions. The eIDAS regulation defines them as a group of electronic data connected to other electronic data or connected by logical connection to other electronic data and used by the signatory for the signature. An example of an electronic signature is the reproduction of the signature on an electronic document. Some parties are supportive and expressly authorize the use of electronic signatures; However, they are not always acceptable to counterparties who may insist on the original “wet ink” signatures (for example. B for “Know your client” checks). Parties may use eSignatures to sign leases, sales and sales contracts, and other documents that create or transfer an interest in the land4.
In all three jurisdictions, eSignatures are often used in residential and commercial real estate transactions. Parties sometimes explicitly agree to export documents electronically and to require that wet signatures be provided after closure. – those that are analytically listed by Article 1350, 1 to 12, of the Italian Civil Code, in particular with regard to the transfer of ownership or transfer of rights to them, as well as lease-sale contracts lasting more than nine years; In addition to the electronic signatures listed above, the digital management code governs what is known as “digital signature,” a particular type of qualified electronic signature, based on a system of cryptographic keys, including a public and private, keys that are linked to each other, allowing the holder of an electronic signature via the private key and a third party to be connected by the public key. to indicate and verify the origin and integrity of a document or set of electronic documents. Before the eIDAS regulation came into force, digital signatures were already used in Italy and is now the most common type of qualified electronic signature in Italy. Advanced electronic signature: this is an electronic signature that meets the following requirements (i) it is linked exclusively to the signatory; (ii) it can identify the signatory; (iii) it is based on electronic signature creation data whose high level of security can be used by the signatory under its sole control; (iv) is linked to the signed data so that any further changes to that data can be found. The Digital Administrative Code or the CAD (Decree Law No. 82 of March 7, 2005, amended later) and its terms of application regulate, at the national level, the use of electronic signatures and the resulting legal effects.
The documents covered by Article 1350, 13, of the Italian Civil Code, generally mentioning all other documents and documents written in Italian law, such as bank contracts, agreements with the public administration and non-competition agreements for workers. The eIDAS regulation provides that a qualified electronic signature has legal effects equivalent to those of a handwritten signature and that no legal value may be denied to an electronic signature (neither qualified nor advanced) because of its electronic form or because it does not meet the requirements for qualified electronic signatures (so-called “principle of non-discrimination of electronic documents”).